ALERTES EMAIL - REVUE Revue internationale de droit pénal

1. When you consider the pros and cons of lay judging and especially when you
want to establish the arguments for lay judges you have start with the tradition.
Even though there were professional judges in Ancient Greece 600 years B.C.
and later in the Roman empire, lay judging is the original form of rendering justice;
justice was carried out by an assembly of all free men in ancient times, at least if
and when the verdict did not depend on the judgement of gods or of the chief of
the tribe.

One cannot begin to speak about lay judges in a more scientific way until
there are skilled professionals to compare them with and professional judges in
the modern sense first appear in the 12th century, along with the appearance of
the universities. From that point on, there appears a division between career
judges and lay judges in Europe, and the proportion of these cathegories during
different periods depends on the political struggle in each country. In brief, it could
be said that the stronger the king, the stronger and more stable the element of lay
justice. This sounds lika a contradiction, but the explanation is that in a stable
national state justice may have been used as means of political oppression, but
jurisdiction itself has never been a battleground.

On the other hand, where courts were used as a political weapon by different
feudal kings, princes, bishops etc., the presence of judges elected by the people
was more limited. And therefore, in most European countries, lay judges were
also out of the picture for some time during their history.

You may say that Great Britain is an exception, an example of continous lay
participation and this is true. But some remarks must be made. The right,
according to Magna Carta, to be judged by your peers meant only the right for the
nobles not to be judged in the same courts as the ordinary people. In the 16th and
17th centuries, beeing prosecuted was the same as being condemned - it was a
formal procedure and it almost never happened that the jurors went against the
judge, at least not until the famous trial agaist William Penn in 1690.

A better example is Sweden. In Sweden - and in Finland, which was a part of
Sweden until 1809 - judges elected by the people have taken part in the courts for
more than a thousand years, without interruption. We can claim not only that the
Swedish tradition of lay judging is longer and more glorious than the English jury
system, but also that the Scandianavian court is the cradle of the English jury. It is
often said that the scabini system in the German-Roman Empire during the 9th
century is the origin of the jury - and that it was brought to England by William the
Conqueror - but, firstly, the scabini were not really judges, but rather the
emperor´s local investigators of crime. Secondly, when William arrived, the jury
already had existed for more than 150 years in the part of England that was under
Danish jurisdiction, where Danelagen applied. In disputes regarding land and
property the Vikings used a court called frändestämma, with 12 judges, 6 elected
by each party. This is really the origin of the jury, at least according to
Scandinavian research.

In Sweden the jury system (of the Vikings) was abandoned long before it got
its modern shape in the 18th century. In the 13th century the courts were formed
within a mixed system, with one judge - in the beginning with the king´s
representative and in the 17th century with a career judge - and 12 permanent lay
judges, elected by the people. Today the number of lay judges has been reduced
to 3, but the mixed system remains.

Are there such reasons ? Yes, there are. But the reasons are not strong
enough. The science of jurisprudence has not yet been able to prove that justice
is done better without lay judges. The existance of lay judges means : a) that
judging is still a primitive procedure; or b) that judging contains an element that
cannot be considered as scientific.

The key question when deciding about having lay judges or not is this : Is
judging science or politics ? A lot of people would say ”both” in answer to that
question, but no matter what the answer is, two statements could be made : 1.
legal science has not shown that judging would improve in a significant way
without lay judges and; 2. it is not realistic to get rid of lay judges where there is
a long tradition of lay judging.

In Sweden lay judges are elected by the political parties and politicians are
not very keen on abolishing political functions. The self-interest of the politicians
create conservatism and a defence of the status quo in the organisation of the
courts. In other countries, for example where you have the jury system, the lay
element is considered an important part of the distribution of power, a part that
cannot be taken away without serious damage to that balance.

As a legal researcher in England or the USA I think one has to accept the
existence of the jury system. And you get nowhere in Sweden if you suggest that
lay judges should be removed. That does not mean that we lack an intense
discussion about the advantages and disadvantages of the system, and in a
monography with the title ”Lay judging” (1996) [1][1] Lekm?n som domare. I have tried to analyse and
present the advantages and disadvantages of lay judging.

2. A philosophical argument for lay judges is that justice can only be
defined in a layperson’s terms.

This argument is a common defence for the jury system and could be
developed as follows :

Law means power and is built on values - if you let professional judges take
over you give judging a false - neutral, objective - perspective, a natural lawperspective. A court with professional judges only conceals the fact that a verdict
is a functionally defined expression of ”a repressive political mechanism”.

When lay judges are used it is revealed that a court articulates power, that
justice is a blunt exercise. There is room for some discretion. The risk of
erroneous judgement is part of the system and there are no possibilities of
scientific verification. The conclusion : judging is a pragmatic, not a scientific, task.

An important argument against lay judges is their lack of juridical
competence. We live in a society that has become more and more specialized.
When you´ve got a tooth-ache you go to the dentist, when your car breaks down
you leave it with a mechanic - why should you then be judged by your neighbour ?

The reason must be that the majority of people still want the community to
decide who is going to be cast out from and who can stay in the community - the
main task is not to establish the facts, it is to condemn or not condemn. And
that´s why a person like O.J. Simpson could be found not guilty.

Another argument for lay judging is that lay judges give legitimacy to the
system justice expresses a higher political quality if citizens participate. It is more
easy - for the condemned and for the public - to accept a verdict if justice is
administered by their peers, at least by equals in the sense of laypersons. If there
were no lay judges in the court the verdict could be regarded as the fruit of an
impersonal apparatus of power.

But against that one can object : lay participation is only a democratic alibi,
at least in mixed courts, as the space for maneuver of the lay judges today is
limited by the standards of the law : it is only when the law does not give the
answer that lay judging can have a real impact on the verdict. Law is made in the
parliament, not in court.

4. A fourth reason for lay judging could be called ”democratic control” - the
judging function is performed by a mini-parliament, where different interests and
values are represented. Professional judges are thereby controlled in the mixed
system and partially put aside in the jury system.

Against that there is a very strong argument concerning mixed courts : if the
lay judge is in court to judge, he cannot really perform a control function as that
would be to control himself. In the history of lay judging it is possible to distiguish
four different functions:

It is only in the third and fourth role that the lay judge can express his
opinions in a way similar to democratic decisionmaking. It is only in the fourth
role that he also has the right to put the law aside if he thinks that the law isn´t
adequate in a certain case. In the first three forms the lay judge is a hostage of
the professional judge.

5. An argument for lay judging considers the lay judge to be a link with the
common sense of justice.

This argument contains a presumption that the professional judge does not
know this common sense of justice, but the lay judges do. Is that so ? I cannot
answer that question, but it opens up some new questions :

a) What is the common sense of law ? Isn´t that same value not expressed by the
law ?

b) Is there space for common sense in judging today ?

Yes, probably, but the laws are more and more detailed, we have more and
more relevant precedents and in most legal systems there is a possibility to
change a verdict in a higher court, where there are no lay judges. If, for example,
the lay judges want a much more severe punishment than the precedents indicate
the higher court will change the verdict.

Do lay judges represent the common sense of justice ?

Maybe American jurors are, but the permanent members of mixed courts are
not. Often they represent the same establishment as the career judges and, if not,
the values of the other judges get internalized after a while.

d) If the lay judges are selected for every individual trial - can they represent the
common sense of justice ?

That depends on the selection process and the number of judges selected. If
common sense was homogenous one single judge would be sufficient. But as
common sense varies with class, sex, age, ethnical group, education, etc., you
need a certain number to get a spectrum of the population. In theory you need at
least 3 lay judges to get a demographical spectrum, in practice you would need at
least 6 - or better 12 jurors - to cover three different age-groups and all the other
important demographical factors.

f) Should the lay judge express the common sense of justice ?

That depends on the function, but an argument against lay judging is that it is
very hard to get a well-balanced representation. Another argument against letting
the common sense of justice into the criminal trial is that the law could be
expressing a higher moral standard than the common interpretation thereof and
that the directive will of the legislator (the elected parliament) will be lost by using
lay judges.

6. Another argument for lay judges is that they bring a broader life
experience into the court.

The discussion is thereby widened and the evaluation of evidence is
improved. This argument, too, contains a presumption that career judges are
isolated from the real world or at least that lay judges can provide other
experiences than the professional judges. Probably the argument only says that it
is an advantage to have broader life experience in court, less important in what
form. But it can also be assumed that ordinary people as judges have less
difficulties to understand ordinary people who participate in the trial.

An argument against lay judging is that there is a risk of subjectivity, of a
more emotional point of view. Research on lay judges shows for tendency for
judgement to be based on intuition and emotion, often called ”the bleeding heart
syndrom”. In approximately 10% of cases the sympathy profile gives indications
showing that the lay judge thinks that the defendent would not be able to perform
the crime of which he is accused, or at least not to perform it in the described, for
example, cruel, way.

Other research shows that lay judges have difficulties with the question of
relevance and that they mix the question of guilt with the question of punishment.
They also have a tendency to free the accused, not by using a higher standard of
proof, but as a result of reluctance to shoulder such heavy responsability and
probably because of the severe punishment that would be the consequence of a
guilty verdict.

In Sweden, as a contrast, lay judges have the opposite tendency, to find the
accused guilty. My explanation of the fact is that in practice no convict stays in
prison for more than 15 years, no matter what the crime is, and that lay judges in
Swedish courts often have a long court experience (as they are elected for 4
years and are often reelected for new periods).

7. Close to the argument of broader life experience is the argument for lay
participation as a safeguard against technocracy.

Justice must be understood by the people and lay judges prevent the law
from getting too far away from the people´s views of crime and punishment. The
idea is that no crime, no criteria for criminal acting and no principle of evaluation
should be so complicated that the man in the street cannot understand it. Lay
participation prevents justice from becoming a matter for skilled lawyers only.

Against this argument stands the fact that the lay element is an obstacle to
the development of method. The methological standard of deliberation remains
the same year after year, century after century. If there are methods for improving
the security of the evaluation of facts in court, these methods cannot be used as
the the judges do not know them. Lay judges, and, to a greater extent, jurors not
only prevent the possibilty of using modern tecniques, but also prevent the
development of such methods. While other sciences move forward, legal science
remains on the same spot as it was some 500 years ago.

I am not going to try to answer that question, but would like to point out the
differences between a judgement based on common sense and a judgement
based on legal science.

-

LAY JUDGING PROFESSIONAL JUDGING
general awareness of law law & explanatory statements
sence of justice precedent
fairness doctrine
common sense legal method
general life experience judging experience
general education cross-scientific knowledge
intuition relevance
personal values the objectivity of the professional role

If you think that it is enough to have the qualities of a lay judge you need no
professionals. If you think that all tasks can be solved in a professional way you
need no lay judges. Probably you will come to the conclusion that you need both.
Even a professional judge has to use experience founded on common sense to
arrive at his verdict. Does that mean that you need lay judges, too ?

8. A milder form of the anti-techocratic argument is that lay participation in
court makes the proceeedings more easily understandable.

The judge has to speak to the level of the lay judges and therefore also to the
level of the parties and other persons involved in the trial. In the mixed court the
judge has to make himself, and the law, clear to his partners, the lay judges,
during the deliberation. In the jury system, participation as a juror is an instrument
of civil education.

Against this pedagogic argument it can be said that justice could become
trivialized, that complex circumstances have to be explained in a too simplified
way, that standardised tools will be used instead of more scientific tools.

9. If we now try to sum up the pros and cons of lay judging we will find that most
or all the arguments for, could be gathered under the subtitle democratic
argument, and all arguments against lay judges could be sorted under the subtitle
technocratic argument.

Although research demonstrates that it is only in difficult cases that lay
judges have a tendency to let their personal opinions and feelings decide the
verdict, there are such cases and in the jury system erroneous verdicts are not
rare. If you examine jury verdicts from a lawyer´s point of view the professional
judge would have made another decision if he was in charge in one case out of
four or five. [2][2] See Kalven/Zeisel, Baldwin & McConville and others.... To put it in other words : If you use the professional conclusion as a
standard the jury arrives at a wrong verdict in 20-25% of the cases.

How can this be tolerated ? It can be tolerated because most of these
verdicts are in favour of the defendant. The jury finds him not guilty, when the
judge would have found the evidence sufficient to prove the case ”beyond
reasonable doubt”. In the mixed court the best you can say about lay judges,
from the scientific point of view, is that they do no harm.

As we have seen now, all arguments about lay judging have two sides; one
democratic side and one technocratic. Which has the greatest weight ? I think a
lawyer - or at least a legal scientist - must answer : the technocratic argument.
There are no good scientific reasons to keep lay judges within the legal system.

10. I think on of the main arguments for lay participation in Sweden is the fact that
lay judges are less expensive (per head) than professional ones. I think all
Swedish lawyers would agree that the examination of proof would improve and
consequently the error margin would shrink if we could use four professional
judges instead of one professional judge and three lay judges in criminal cases. I
think lawyers in Italy would agree : the quality would improve if you changed la
Corte d´Assise, having eight career judges in each trial instead of two
professional judges and six lay judges.

This example illustrates another reason. It doesn´t seem to be realistic to
have eight professional judges in a first instance trial, but at the same time it must
be better to have more judges than one. The discussion during the deliberation is
important, not only to examine the proof but also to check the rationality of the
decisions and to control the power of justice. And if you increase the number you
can - to a certain extent - increase the experience and knowledge, improve the
discussion. The conclusion : if you have at least one professional judge, the other
contributors to the debate could be laypersons. [3][3] In the jury system it could be questioned that professional...

The problem with the jury system is that it hasn´t enough space for
modern professionalism.

The problem with the mixed courts is to define and promote the functions
of the lay judges.

The problem with mixed courts in Sweden is that lay judges are formally
equal to the professional judge, their function and responsability are the
same. But in practice they cannot fulfill their function, cannot take their
responsability. They are obliged to follow the law - but they don´t know
the law. So, most of the trial they remain silent, knowing that everything
they say could be used against them.